Section 3.44 Misrepresentation and Nondisclosure

• Library: Contracts 2016 Supp

3. (§3.44) Misrepresentation and Nondisclosure

“A ‘misrepresentation’ is an assertion that is not in accord with the facts. A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so.” Best v. Culhane, 677 S.W.2d 390, 394 (Mo. App. E.D. 1984) (citation omitted). “Misrepresentation of a material fact by silence may amount to actionable fraud. However, before silence may add up to misrepresentation, the silent party must have a duty to speak, and that duty arises when the silent party is a fiduciary or possesses superior knowledge.” Nigro v. Research Coll. of Nursing, 876 S.W.2d 681, 686 (Mo. App. W.D. 1994) (citation omitted). When a person enters into an agreement and because of the misrepresentation of the other party does not know the character or essential terms of the proposal, it is said that the contract is void. Restatement (Second) of Contracts § 163 (1981). This is what the courts have referred to as fraud in the factum or fraud in...